Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1972, Nos. 870, 871, and 872, in case of Commonwealth of Pennsylvania v. John H. Warrington.
David Rudovsky, David Kairys, and Kairys & Rudovsky, for appellant.
William C. Turnoff, Mark Sendrow, David Richman, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.
[ 230 Pa. Super. Page 333]
Appellant was tried on indictments charging assault and battery with intent to murder, aggravated assault and battery, assault and battery, carrying a firearm without a license, carrying firearms on public streets or public property, and playfully and wantonly pointing a firearm. At the time of his arrest, in the initial client interview by the public defender, appellant named six persons as possible alibi witnesses. However, later forms listed only five alibi witnesses. These five were interviewed but only two could give any testimony beneficial to appellant.
Appellant was tried in a non-jury trial and was convicted of all charges. Sentence was deferred pending a pre-sentence investigation and the filing of post-trial motions. Motions for a new trial or in arrest of judgment were denied, and appellant was sentenced to two to five years imprisonment on the indictment charging assault with intent to kill, sentence being suspended on the other convictions.
[ 230 Pa. Super. Page 334]
Appellant appealed directly to this court and we granted a Petition for Remission of the Record for the holding of an evidentiary hearing on the issue of defense counsel's failure to call Margaret Johnson as a witness at trial. On December 12, 1973, an evidentiary hearing was held, and on January 5, 1974, relief was denied. This appeal comes from that order.
The facts as found by the lower court are: on December 10, 1971, at approximately 3:50 p.m., Gary Pinkett, a youth worker with the Northwest Mental Health Center in Philadelphia, was shot in the back and left calf. Pinkett testified that appellant definitely did the shooting. He also testified that he had seen appellant before the shooting and knew him by a nickname.
Appellant offered two alibi witnesses at trial who testified appellant was with them at the time of the shooting. Appellant also took the stand in his own defense. The lower court considered all testimony and resolved the issue of credibility in favor of the Commonwealth. The Commonwealth's witness remained steadfast throughout while the testimony of appellant and the other defense witnesses was not so firm. As the record supports the lower court's decision, that decision will not be disturbed on appeal. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972).
Appellant now alleges he was denied effective assistance of counsel due to the failure of his court appointed attorney to interview, investigate, or subpoena for trial an alleged critical alibi witness, Margaret Johnson. The court in Commonwealth v. Whiting, 409 Pa. 492, 498, 187 A.2d 563, 566 (1963), defined alibi as "a defense that places the defendant at the relevant time in a different place than the scene involved and so removed therefrom as ...